March 26, 2011

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.

But... these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our "armed forces." The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed "attack," there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace....

The War Powers Resolution doesn't authorize a single day of Libyan bombing. But it does provide an escape hatch, stating that it is not "intended to alter the constitutional authority of the Congress or of the President." So it's open for Obama to assert that his power as commander in chief allows him to wage war without Congress, despite the Constitution's insistence to the contrary....

Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy....

The War Powers Resolution cedes power to the President in the very place where the argument for independent presidential power is strong: When there is a national security emergency. If you don't fit the War Powers Resolution, because it's not an emergency, the argument for independent power is at its weakest.

Here's the part of my diavlog with Bob Wright where we talk about this issue. Note how, challenged, Bob comes up with a generic neocon argument about how more democracy in the world is good for national security. I press him about how there needs to be an emergency to justify not including Congress in the decisionmaking. (I've let this clip go on a bit, so it's a little long, but I purport to tell you the whole story of constitutional law, so it's actually super-concise.)

43 comments:

Senator Robert Taft (who JFK dubbed "Mr. Republican") opposed the Korean War, basing his opposition not on softness towards communism but instead on the way in which the conflict began--Taft simply opposed the usurpation of Congressional War Powers by President Truman. Taft called it a precedent that we would later regret.

And the point is? Like anyone fully expected Obama to do otherwise? This is a surprise??? ALL leftist, Stalinist, (proto, crypto , the original, or otherwise) statists from Stalin thru Allende to Obama maximize power in their hands to the max extent possible--it's in their ideological DNA.

Since the Great Libyan Adventure started, I've been thinking that this wasn't obama's idea. I don't believe he even wanted to do this. I think that this was something that Hillary (and Bill) thought up to give the bitch some street cred as Secretary of State and they talked obama into him thinking that this would be a good idea. Now, obama is having a hard time selling this war bullshit, because he didn't want this to happen in the first place. He doesn't even know what to say.

obama is an idiot. When he named Hillary as SoS that was one of the dumbest things he could have done. Both Clintons cannot be trusted.

On target! It's ALWAYS a matter of whose ox is being gored for the left. Only Conservatives are stupid enough to actually have principles..

Oh, the left is quick to proclaim principles alright, and they use the more high-sounding ones to hammer conservatives over the head with when convenient, but are just as quick to throw said "long-held" principles under the bus with straight-faced, shameless, tortured rationalizations when not.

War Powers War Shmowers. The definition of "war" is a moot point. This putative President is giving illegal orders to the military because he is not eligible for the office in the fist place (his father was Kenyan, and Obama 2 was born British, and still may be to this day). Do you think the founders were OK w/ a man born British (except for themselves, who fought the Revolution) be the CIC of the armed forces? What about a man who may be British while in office?

And Bob Wright has a couple of New York Times op-eds arguing the exact opposite... namely, spreading democracy through war is wrong and when done in the Muslim world helps to create anti-American Muslim terrorists.

And Bob Wright has a couple of New York Times op-eds arguing the exact opposite... namely, spreading democracy through war is wrong and when done in the Muslim world helps to create anti-American Muslim terrorists.

We've been at war for a decade.

I think liberals and conservatives can agree on this.

Nothing is being accomplished except the reckless expenditure of U.S. lives and fortunes.

Bring everybody home. Accept the fact that the Arab world is going to be stark raving mad and there's nothing we can do about it.

There has long been a school of thought saying the War Powers Act is unconstitutional. One presumes there is a reason why it has never been challenged by the likes of Dennis Kucinich or Ron Paul.

shoutingthomas said...

Yeah, this is all fun... but...

It really is time for the U.S. to stop doing this shit.

We're fighting three wars, for God's sake!

One war with several campaigns and an unrelated campaign.

A little like picking a fight with Guatemala in the midst of WWII because there wasn't any action in Latin America and we may have had a couple of RCTs in the Caribbean that weren't doing anything.

The war I don't think we can walk away from. Libya seems more and more a fool's errand.

AllenS said...

Since the Great Libyan Adventure started, I've been thinking that this wasn't obama's idea. I don't believe he even wanted to do this.

Clearly it wasn't - you're absolutely right. Little Zero had to be bullied into it by three women (and here's a topic for Ann); guess how that makes him (and by extension, us) look in Latin America (machismo), Africa, the Middle East (female circumcision, etc.), and much of eastern Asia (comfort girls, geishas, etc.).

And before you go on yammering about how that little adventure had congressional approval, let me just remind you of the fact that some pretty big lies were told in order to obtain that approval.

These are the salient facts in the eyes of the public.

Wright is right(!) that it doesn't hurt to use the "spreading democracy" argument and that we are using actual allies (apart from just island nations like Tongo or whatever) to shoulder the diplomatic and financial burden. (Not to mention lives). So how this becomes more objectionable than what we did in Iraq is anyone's guess.

My guess: Political opportunism. Naked, raw and in the service of arguments that cost more lives and money, led to less successful outcomes per effort expended, and more blowback diplomatically and strategically.

Plus, it's being prosecuted by an American in name only; in reality it's more accurate to refer to him as that blackMuslimsocialistMarxistinternationalistliberalcommie.

I suppose if Obama helped the push along this skirmish as a part of a reality TV show, then you might have more respect for it.

It's fine to argue to pack it up and bring 'em home, that the Arab world will fix their own problems on their own timeline and their own dime.

But give me a break. How can a slight contribution to a French-led effort in a much smaller country be any less efficient than how we went about "bringing democracy" to Iraq?

At some point, doesn't it make sense to divide victorious outcomes by the lives and money spent in them?

Here's a hint: A smaller denominator is better. Do the math, guys. It's what you proposed to coast to righteous Tea Party victory all over the country on, remember? Can't attack those deficits without some math and analyzing priorities.

First, let's say Ackerman is right. If he is, it seems contrary to his own interests to say that Obama's actions vindicate John Yoo's position, because his last paragraph is (as he must know) pie in the sky. Congress isn't going to pass those laws; it isn't going to cut off funding; it isn't going to impeach the President. All Ackerman has done is lay the foundations for the next President to say "you see? Even Ackerman agrees that the War Powers Act can't be reconciled with Obama's actions, and since the latter were okay, the former doesn't constrain." President Palin thanks you for your service, Bruce.

Second, you must admit that there's fine irony in this. Ackerman's most enduring contribution to legal errata has been his idea of "Constitutional moments," in which praxis reforms the Constitution in a moment of crisis. Thus, the new deal was Constitutional because we decided as a nation that it was necessary, and since that which is necessary can't be unconstitutional, the moment changed the meaning of the Constitution. To all those whining conservatives who want to insist that the Constitution means something, Ackerman's reply is, essentially, "get over it." So perhaps we might justifiably answer Ackerman: This is just a constitutional moment, hon. Get over it.

Or to put a finer point on it: Conservatives can reasonably (albeit erroneously) object that Obama's actions are unconstitutional, because they believe in a meaningful constitutional. But for liberals to protest that Obama's actions are unconstitutional? Ridiculous. Liberals have spent generations arguing that the structural constitution is utterly meaningless, that only the rights-bearing clauses have serious effect and even they have no permanent content, drawing their meaning from the liberal pieties of the era. Call it a constitutional moment (Ackerman's heretofore excuse), or say that the scope of the declare war clause is not static, that it must must draw its meaning from the evolving standards of decency that mark the progress of a maturing society; either way, liberal constitutional exegesis denies liberal outrage at Obama's actions. They must choose one or the other.

Hardly. We're simply pointing out that all the objections and reservations (blood for oil, unilateral, rush to war, etc)raised by Democrats during the Bush years aren't being applied when Obama does the same.

ie. we shouldn't ever again take anything you say seriously. Fen's Law.

Legal scholars will debate legal points indefinitely and until the end of time.

But in a democracy (or "democratic republic", or whatever finer point you put on it), popular legitimacy matters.

The people can tell that this action in Libya is nowhere near the humongous clusterfuck of a quagmire that Iraq was and is, nor did launching it involve the amount of lying to the public, breaking of alliances and humanitarian and strategic blunders of the former. In time it might. But it doesn't now and the public always allows for an initial benefit of the doubt when it comes to engaging in armed conflict.

Whether that remains over time is another story.

The fact of the matter is that Obama doesn't lose any popularity over this, may actually gain some, and will not stick with bludgeoning this conflict to death on his own the way Bush did. For that, I understand you resent him. But let's admit that for the right this is a political problem. When Republicans want to change their strategy get serious about constitutional issues, let me know. The left will have that debate with you but not until you've convinced your base that it's an argument you're serious enough about to have built a political platform around it.

It's the difference that matters, but don't let democratic irrelevancy deter you from your propaganda war.

I don't care what your point is. Popular legitimacy isn't everything but it certainly matters more than a bully like you would know. Keep trying to fight your wars without it and let's see where it gets you.

I never had a problem with Bush's interest in Iraq. But it's not my fault that the way he bungled and lied his way into it backfired on him so predictably and wondrously.

At what point are liberals no longer responsible for Bush's incompetence?

Since you're the one who ignores incredibly important issues like competence and military scale, I'd say you're the one being a disingenuous partisan about this. Unless you think that costly, incompetently prosecuted wars are great no matter who leads them.

Admit to me that you'd prefer Obama spend more money and lives on this skirmish and then I'll not only know what your real agenda is, I'll have some good proof of it.

Conservatives 4 Better Dental Hygiene said..."the scale of what we're doing in Libya isn't even remotely comparable to what we did in Iraq."

Right, exactly. It isn't a war—which is why Congressional approval isn't necessary. If I didn't think it would throw my comment into the spam bucket, I'd link to my post from last weekend (or Jack Goldsmith's similar one from midweek), which explains this point at more length. The bottom line is that "war" =/= "any military action." Obama's errors weren't constitutional but political and tactical: He involved the United Nations and waited too long.

"But in a democracy (or 'democratic republic', or whatever finer point you put on it), popular legitimacy matters."

I appreciate the concession that we're not a democracy, although I obviously dispute the point the question is merely one of characterization and semantics. I have no beef with the general notion that the government is accountable to the people, and of course it will be. If the people see this action as illegitimate, they are free to remove Obama in 2012. If they don't see it as sufficiently important, when weighed against the other factors taken into account when deciding how to vote, then that speaks for itself. Nor is it necessary to wait until 2012: Congress can act to impeach Obama or defund his actions. And as chance would have it, this is an unusually acute threat, because Congress has yet to pass a budget for this year, and so, because the government is living on CRs, Congress can express its displeasure in very little time.

"The people can tell that this action in Libya is nowhere near the humongous clusterfuck of a quagmire that Iraq was … and the public always allows for an initial benefit of the doubt when it comes to engaging in armed conflict."

I think that's right, to the extent I've quoted. Again, the characterization is problematic, but I think the opposition is largely louder rather than more prevalent. All I am saying is give war a chance—do do do do do, etc.

It occurs to me that you have mistaken my position for opposition to what Obama has done. That's amusing; I support our intervention in Libya; indeed, I insist on our right to intervene anywhere, any time, in any manner, for any reason that pleases us. But this is just hilarious:

Riiiiiiiiiight. It's the right that isn't serious about constitutional issues. Talk about projection! As my comment above pointed out, liberal constitutional exegesis forecloses liberal constitutional objections to what Obama is doing, precisely because they don't take the constitution seriously.

Fen said..."Ritmo [said]: Of course, the scale of what we're doing in Libya isn't even remotely comparable to what we did in Iraq. … Irrelevant and still does not refute my point."

Actually it's entirely relevant. Scale is part of what distinguishes "war" (which requires Congressional action) from a limited military operation (which doesn't). And that's true whichever side of the question you come down on.

It's been this way for a long time. The only big war that didn't get Congress to sign off was Korea. Truman also didn't run for reelection in 1952. We've had small wars since the Quasi-War with France in the 1790s.

The mistake here is lumping bombing Libya with WW2 or Vietnam, or even Iraq and Afghanistan. It's not. We are conducting the equivalent of 19th century gunboat diplomacy.

The US used to occupy entire Latin American and Caribbean countries with nothing but the President's say-so (we still do that, actually). The idea that somehow the Presidency has become this out-of-control war machine is a post-Vietnam paranoia. All the big wars since then (Desert Storm, Iraq, and Afghanistan) have gotten the equivalent of declarations of war from Congress. Vietnam did, too, for that matter.

One of the primary reasons we have a President is to be a war leader. Wars by committee don't work well. If someone can't handle that responsibility they shouldn't be President, because wars always come up. Every President since FDR has had to decide to go to war or not. Mostly, they did.

Congress can pull the plug on a war through funding. They did it with Vietnam, but didn't for Iraq. That's their business, but if they choose not to exercise a power they really shouldn't cry about the President.

Mr Insalaco's response to Ackerman's article explains the relationship between the U.N. Participation Act of 1945 and the 1973 War Powers Resolution:

"The UN Participation Act of 1945 provides for the President to make American resources available to the UNSC for intervention under Article 42 (which is the explicit justification in UNSC Resolution 1973) and the War Powers Resolution provides for American combat action without declaration of war provided the President informs and consults Congress--which he did--and ends the action within 60 days if he cannot get approval from them (a la joint resolutions) to continue. The Senate also passed a resolution calling for a no-fly zone, signaling Congressional support for American action. He's completely within Constitutional authority, as I note in my own post a greater length: http://novuscivis.blogspot.com/2011/03/intervener-in-chief-libya-and.html"

This is not a defensive war, nor in our vital national interest, it is a humanitarian combat operation that is optional at best. If there was time for international debate and a UN resolution, there was certainly time for national debate and a Congressional resolution. This would have allowed the President to gain the consent of the governed through their elected representatives prior to engaging in optional combat operations.